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1. The Applicant seeks the leave of this Court to institute Civil Proceedings as against the Respondents arising out of his detention in the Department of Psychiatry, County Hospital, Roscommon, on the 18th July, 1996 and thereafter.

2. The Applicant has sworn an affidavit in which he deposes that on the 18th July he was at home reading a newspaper when the first named Respondent, a medical doctor who practices in Drumshambo, Co. Leitrim, called to his house. The Applicant says that he knew the doctor and admitted him to his house. He offered him a cup of tea. He said that the doctor sat down and told him that he was not there on a courtesy call. He indicated that he had received a telephone message from the Gardai stating that the Applicant was upset and that they wanted a doctor to examine him. He states that the doctor told him that he had himself been informed by the Gardai that the Applicant had threatened his brother Ronan Lehany with physical violence during the course of an argument on the 16th July, 1996.

3. The Applicant states that the doctor, having indicated the nature of his visit, asked him how he was feeling. The Applicant indicated to him that he felt fine and when asked whether he was sleeping properly he replied that he was. The doctor then stated that the Gardai had requested that the Applicant be taken to Roscommon County Hospital for assessment. The Applicant states that he indicated to the doctor at this stage that there was nothing wrong with him and he replied to him that it was the Gardai who had directed this course of action to be taken. He told the doctor that he was unsure as to how he was expected to go to the Psychiatric Hospital and asked if he could go in a private capacity. He has indicated that the reply given to him was, “I don’t know. It’s up to yourself”. It appears that the doctor then left his house. The Applicant says that the entire conversation lasted less than 10 minutes and that there was no physical examination carried out by the doctor and that the exchange of information was to the best of his knowledge the only inquiries that the doctor made about his physical or mental health. He says he was not asked about medication or whether he had been feeling depressed or whether he felt violent or any question touching on those matters. The Applicant states that as the doctor was leaving he said that he would have to go to see the Applicant’s brother and his wife to see what they had to say about it. The Applicant says that about an hour later he was working in his hay shed when he heard the noise of a car outside. When he stepped out of the building he saw a Garda squad car had arrived containing three Gardai. He says that one of the members of the Garda Siochana produced a piece of paper and said words to the effect, “Here’s a docket signed by a doctor and you have to come with us”. He says that he asked the Garda was it for an assessment to which the reply was given, “We don’t know”. He says that he was allowed go into his house and wash and change his clothes and that he was also permitted to talk to his brother Seamus Lehany with whom he shares his home.

4. The Applicant says that the Gardai showed him the letter which provided for his detention and he accepted that he had no option but to go with them. He was taken by the Gardai to Ballyfarnon Garda Station and later transported from the station to the Psychiatric wing of Roscommon County Hospital by a local taxi driver.

5. The Applicant says that when he arrived at the hospital, which is controlled and managed by the Western Health Board, he was seen by a Dr. Kelleghey who brought him to a small reception room where they had a brief discussion. He states that he was asked if he had any history of mental illness. He explained to the doctor that he had suffered from a brief period of depression in or about 1985. That had arisen following an accident at work where he suffered very severe head and leg injuries. He was incapacitated for a period after this accident, the consequence of which he became depressed. He was treated during this time by Dr. Mary McGuire a Consultant Psychiatrist of Boyle, Co. Roscommon and was placed on antidepressant medication for some time. As he became physically rehabilitated his mental condition improved and since 1986 he has not been on antidepressant medication and has not received any medical attention since that time.

6. The Applicant says that he was asked by Dr. Kelleghey about his family history and he indicated to him that there was no history of mental illness in his family. He was told by the doctor that he would be carrying out a number of tests which he believes he passed satisfactorily. These involved reciting the days of the week backwards and repeating an address in Galway to the doctor at various intervals during his conversation. He says that he was very upset at being brought to the Psychiatric Hospital but he co-operated at all times with the authorities. He says that at the end of the consultation Dr. Kelleghey said, “I can see nothing wrong and there is no need for medication”. He said that the doctor said that he would not sign an Order for Detention until he had been seen by Dr. Mary McGuire from Boyle. The Applicant says that it subsequently transpired, however, that the doctor did sign a Detention Order as soon as he arrived at the hospital. He was seen on the following morning by a Dr. O’Shea who sent for Dr. McGuire. When Dr. McGuire saw him she said words to the effect that “this is a nice slap in the face for you above of all people”. She said that there was no need for him to be detained in a Psychiatric Hospital and she quickly obtained two signatures to secure his release. He left the hospital at approximately 2 p.m. on the 19th July, 1996. The Applicant has exhibited a form under the Mental Treatment Act, providing for the application, certificate and order for reception and detention of a person as a temporary patient and as a chargeable patient in an approved institution in pursuance of Section 184 of the Act. The application form is signed by the Applicant’s brother Ronan Lehany and the Certificate of the Registered Medical Practitioner is signed by Dr. Declan Loftus, the first Respondent who certified on the 18th July, 1996 that he was of opinion that the Applicant was suffering from a mental illness, required for his recovery not more than 6 months suitable treatment and was unfit on account of his mental state for treatment as a voluntary patient.

7. The Applicant deposes his belief that Dr. Loftus in giving such a Certificate as a Registered Medical Practitioner was not acting in good faith and the Applicant believes he was negligent in the manner in which he gave that certificate. He does not believe that the Certificate was warranted. His understanding is that Dr. Loftus contacted the Gardai before he visited the Applicant’s home and indicated to them that they ought to be prepared to bring a dangerous patient, that is the Applicant, to Roscommon County Hospital. The Applicant complains that Dr. Loftus acted on the basis of and placed too much emphasis on a complaint by his brother Ronan Lehany. He had a serious disagreement with his brother who alleges that he threatened him with a pitch fork. He says that it is true that a heated verbal exchange occurred between them as a result of a dispute but at no time did he threaten his brother with violence and in fact it was he who issued threats to the Applicant. He says that he is unaware of any complaint made to the Gardai about this and he has not been interviewed by the Gardai concerning that incident.

8. The Applicant does not believe that there were any justifiable grounds for the Certificate issued by Dr. Loftus. As a result of his actions he was detained for approximately one day in a Psychiatric Hospital in Roscommon and he was considerably upset and embarrassed over the entire incident. This would not have occurred had the first named Respondent exercised any reasonable care and made proper inquires into his previous medical history. He believes that his detention at the hospital was unwarranted and unlawful and he intends to issue proceedings against the first and second named Respondents in relation to same. He accordingly asks this Court for an order pursuant to Section 260 of the Mental Treatment Act, giving him leave or liberty to institute civil proceedings against the Respondents and each of them in respect of his detention and for further or other relief.

9. An affidavit has been sworn by Dr. Loftus in which he deposes to having known the Plaintiff since he was a child both personally and as a patient. He treated the Applicant in 1985 and in 1986 arising out of the accident referred to by the Applicant. He was aware that the Plaintiff was being treated by a Consultant Psychiatrist arising out of depressive symptoms at that time and also for other related complaints. The doctor was aware from the report of Dr. McGuire made in 1986 that she offered the view that any further stress on the Applicant might induce a similar psychiatric illness to the one he was suffering in 1985. He was also aware that the Applicant has seen Dr. McGuire from time to time since 1986.

10. Dr. Loftus sets out the background leading to the Applicant’s committal as follows. Ronan Lehany who is also a patient, as is his wife and children, informed the doctor approximately one month prior to the event complained of that the Applicant was behaving quite strangely. Examples of the strange behaviour alleged were that the Plaintiff was following him in his car and he was also following Ronan Lehany’s children from school. He was also informed that the Applicant had threatened Ronan Lehany verbally as a result of a land dispute that was on going between them. He was informed by Ronan Lehany and believed that he was genuinely fearful that an injury might he done to him or his children. He advised Mr. Lehany to report these matters to the Gardai and told him that if he saw the local Garda Sergeant he would advise him of what Ronan Lehany had told him. Dr. Loftus states that about two weeks later as he was travelling through Ballyfarnan he saw the Sergeant and he stopped and told him what he had been told by Ronan Lehany. The Seargent indicated that he would speak to the Applicant. On the 16th July, 1996 Ronan Lehany’s wife called to his surgery at Drumshanbo. She stated to him that she was in fear of Seán Lehany that he had attacked her with a pitch fork and only that her brother-in-law Séamus was around at that time that she would have been injured. She told the doctor that the Applicant had threatened to kill the pups owned by her children and that her children were frightened and afraid to go outside the house. The doctor advised Mrs. Lehany that she should report these matters to the Gardai.

11. On the 18th July, Ronan Lehany called to the doctors surgery and made further complaints about the Applicant’s behaviour. He told him that he had talked to the Gardai on the previous day and that the Gardai advised him that he should seek a doctor in relation to the possibility of having the Plaintiff committed. Ronan Lehany accordingly saw his locum Dr. McCarthy that day as he (Dr. Loftus) was unavailable and Dr. McCarthy advised Ronan Lehany to speak to Dr. Loftus when he came back on duty the next day as he was more familiar with the patient. Following his conversation with Ronan Lehany on the 18th July he told him that he would at his request call to see the Applicant. Prior to so doing he telephoned the Gardai in Boyle as the Station in Ballyfarnan was not operating that day. When the Gardai in Boyle informed him that they knew of the Applicant, they indicated that they had interviewed the Applicant on several occasions within the previous few weeks and felt that he was unwell.

12. Dr. Loftus has agreed with certain aspects of the visit as deposed to by the Applicant but denies that he told the Applicant who had requested him to visit the Applicant. He says that he told the Applicant that he was there due to reports he had received including the allegation that the Applicant has attacked his sister-in-law and her children but did not specify the source of that report. Dr. Loftus states that on hearing this the Applicant immediately became agitated and aggressive, banged the table and jumped up and started to pace up and down the floor. He repeatedly swore vengeance on his relations. The Applicant was pacing up and down the floor apparently in a frenzy repeatedly talking about his relations, his mother and their land. Dr. Loftus states that these comments did not appear to be addressed to him directly. He observed the Applicant who at this stage appeared to be in another world. He formed the opinion that he was suffering from delusions. His eyes had a fixed stare and he was frothing at the mouth. The Applicant then became a little calmer at that stage and he (Dr. Loftus) suggested to the Applicant that he should go to hospital for observation and assessment. When he suggested this the Applicant again became very agitated. It was difficult to have a rational conversation with him.

13. While Dr. Loftus concedes that he asked the Applicant how he was sleeping and how his appetite was, he denies that he informed the Applicant that the Gardai requested that he be sent to hospital and he further denies that he asked him to comment on whether there was anything wrong with him or not. At no time did he inform the Applicant that the Gardai had directed that this course of action be taken. He also denies that the Applicant said anything to him about going in a private capacity to a Psychiatric Hospital or that he said to him that it was up to himself. Dr. Loftus told the Applicant that if he did not go to hospital on a voluntary basis he would be committed. At this stage he was seated in the Applicant’s house and he came and stood over him in a threatening manner and refused to go to hospital. He also threatened him by saying that if he attempted to contact the Gardai he would get him. The Applicant appeared to be in a type of frenzy and was not amenable to rational conversation at this stage. The doctor then decided to leave as he was not only upset by the Applicant’s behaviour but quite worried by his threat which he felt he was well capable of carrying into effect.

14. While Dr. Loftus agrees that he physically did not examine the Applicant at any time as it would clearly not have been possible to physically examine him given his agitated and aggressive state of mind but he did not feel at any stage that such an examination was necessary or would have added to the view he had formed of the Applicant’s medical condition. He felt he had asked the Applicant relevant questions indicating psychiatric illness such as depression or personality disorder. He was anxious not to ask the Applicant any questions which he might perceive as being offensive and thereby possibly put his safety at risk. He was quite satisfied from his discussion with the Applicant and from his observation of him that he had more than ample opportunity of forming a proper and considerate clinical assessment of his mental condition. He had no doubt and still has no doubt that at the time the Applicant was mentally ill and was potentially a danger to himself and to others. Dr. Loftus further denies having said to the Applicant that he would have to go and see his brother and his wife to see what they had to say about it or anything to the like effect.

15. Dr. Loftus says that it is true that he did sign the certificate exhibited by the Applicant but in doing so he acted properly and in the best interests of both the Applicant and members of the family. He refutes entirely the allegation that he acted in bad faith or negligently in the manner in which he gave the certificate. He denies that he informed the Gardai that they ought to be prepared to bring a dangerous patient to Roscommon County Hospital or so informed the Applicant as he alleges. When he telephoned the Gardai he informed them that he was going to see Mr. Lehany who was reported unwell. He asked them if they would be available to take the Applicant to Roscommon if he so needed them. He only telephoned to ascertain their availability. Dr. Loftus denies that he placed too much emphasis in signing the certificate on a complaint made solely by the Applicant’s brother. In signing the certificate he believes that he acted on the basis, firstly of his own clinical assessment and judgment of the Applicants condition and secondly on the basis of a credible history of the Applicant’s behaviour in recent past which he considered to come from reliable witnesses and thirdly on the basis of the Applicants medical and psychiatric history then known to him. He also believed at all material times in addition to the foregoing matters that there was a genuine and immediate risk to the safety, health and welfare of the Applicant and the members of his family which as a minimum require urgent psychiatric assessment and, if necessary, treatment. On this basis he refutes the suggestion that there were no justifiable grounds for the issuing of the said certificate and he remains firmly of the view that the same was entirely justified and proper.

16. An affidavit has been sworn by Dr. Mary McGuire who is a Consultant Psychiatrist with the Respondent Health Board at the Department of Psychiatry at the County Hospital in Roscommon. She has referred to documented notes which show that it was alleged that the Applicant attacked his sister-in-law the previous day with a pitch fork and threatened to kill the family dogs and poured hot water on his brother. She says that the Applicant was interviewed by the admitting doctor, Dr. Seamus O’Ceallaigh. The Applicant stated that he had been involved in a dispute with his brother and wife since the death of his mother. He stated that his mother had left all her land and property to him and that his brother was aggrieved by this. The Applicant’s brother lives nearby. The Applicant alleged that his brother had assaulted him in the past and had called in the Gardai but that charges had not been pressed for the sake of the family. Dr. McGuire indicates that the Applicant alleged that on the previous day, the 17th July, 1996 his brother denied him access to his own lands and alleged that his brother had stated that he would slit his throat. The Applicant also alleged according to the notes that his brothers wife had verbally abused him the previous day and had called him a homosexual and allegedly stated that she had contacts in the USA and would have him killed. In further reference to the notes, Dr. McGuire says that the Applicant felt on admission that he had been signed into hospital in order to ruin him and to weaken any testimony he might give.

17. Dr. McGuire was aware of the mental state examination carried out on the 18th July, 1996 by Dr. O’Ceallaigh. This examination indicated that the mood of the Applicant was reported to be objectively and subjectively depressed at the time and that his affect was appropriate. He denied any obsession or compulsions and denied de-personalisation/de-realisation. There was no evidence of delusions and his thought was normal in form. The Applicant denied any hallucinations. He was normally orientated. His attention and concentration were normal and he had no problems with recent or remote memory.

18. As part of the management plan drawn up in respect of the Applicant, Dr. Seamus O’Ceallaigh contacted her by telephone. They discussed the case over the telephone and discussed the possibility that the General Practitioner had been supplied with false or misleading information or in the alternative that the Applicant may be suffering from a problem with his mental state, which would need to be more accurately assessed, particularly with a view to obtaining a collateral history which could be obtained to establish what the real situation was. With this in view it was decided between herself and Dr. O’Ceallaigh to admit the Applicant overnight for observation. She says that on the following morning the Applicant was interviewed at length. During this time of interview he never displayed any psychotic symptoms and always presented as calm, shy and quiet. He was always pleasant and co-operative. Early on the morning of the 19th July the Applicant’s brother Seamus, who resides with him, called to her home to state that the Applicant should not be in hospital, that he was perfectly sane and reasonable and that he was the victim of his brother’s bitterness over a land dispute. Mr. Seamus Lehany wanted his brother, the Applicant discharged on that day. During her interview with the Applicant on that day he had appeared calm, coherent and rational. He was upset by his predicament and wanted to go home. He stated that he did not know his rights when he was certified and would have availed of a solicitor and would have had a second medical opinion had he been aware of his rights before he was taken to hospital. He gave his word that he would not contact his brother Ronan, his wife or children and that he would deal with any difficulties through legal channels only. Dr. McGuire says that following this interview another brother of the Applicant telephoned her from Dublin stating that he was amazed and aghast at the Applicant’s predicament. He wanted the Applicant discharged immediately. This brother subsequently faxed a note supporting the Applicant’s request for discharge and outlining the Applicant’s good character.

19. Dr. McGuire then spoke with the referring General Practitioner, Dr. Declan Loftus by telephone on the morning of the 19th July and Dr. Loftus stated that in his opinion the Applicant had been agitated the previous day because of the dispute and Dr. Loftus was worried in case a further row would erupt and the Applicant would damage somebody. Dr. Loftus was seriously concerned that this was a real and substantial danger. She says that at this stage it was appropriate that a management plan be drawn up in respect of the care of the Applicant. Because collateral statements had been given by two members of the Applicants family and following psychiatric assessment of him and observation overnight it was decided that he could be discharged from hospital and he was so discharged on the 19th July, 1996. She has seen the Applicant on a number of subsequent occasions and again he presents in a calm, coherent manner and he is on no psychiatric medication. The Applicant was admitted as a certified patient on the 18th July, 1996. It was felt prudent and appropriate that he be detained overnight in order to further assess his mental state and, in particular, to get a collateral history with regard to the family dispute. It was also necessary to observe and assess the Applicant should he be suffering from any behavioural or psychotic problems. On the following morning two members of the Applicant’s family substantiated his claim that he was a victim of a land dispute. This was the collateral history which was necessary to be obtained, together with the observations taken of him to ensure that the Applicant was not suffering from any more serious and substantial problems. Once the observation of the Applicant was made and once the collateral history was taken he was immediately discharged from the hospital and she believes that at all times the Health Board acted in a good faith and with the best interests of the Applicant in mind without any ulterior or other motives, other than his mental health, his mental welfare, his own safety and the safety of members of his family and no consideration other than those were taken into account in the assessment, observation and treatment of the Applicant.

20. A further affidavit of has been sworn by Dr. Seamus O’Ceallaigh who says that he is a resident Medical Practitioner practising in the field of Psychiatry. At the time of the Applicant’s detention he was employed by the Western Health Board in the Western Psychiatry Rotation and was part of that particular medical group. He was Senior House Officer at the Department of Psychiatry, Roscommon County Hospital and an application for admission of the Applicant as a temporary, chargeable patient had been made by Mr. Ronan Lehany a brother of the Applicant. A certificate had been signed by the General Practitioner Dr. Declan Loftus. Part of the temporary patient (chargeable) form under the Mental Treatment Act of 1945 had been filled in by Dr. Declan Loftus and signed by him dated the 18th July, 1996. In addition to the form there was a referral letter from Dr. Declan Loftus indicating that the Applicant had attacked his sister-in-law with a pitch fork on the 17th July, 1996 and threatened to kill the family dogs and had thrown hot water over his brother Ronan Lehany. He learned from the Applicant that he had previously been treated by Dr. Mary McGuire, Consultant Psychiatrist but he did not have access to any old case notes at the time he carried out his assessment. He interviewed the Applicant when he presented at Roscommon County Hospital on the 18th July, 1996. He denied that the events reported by the General Practitioner had taken place. The Applicant claimed that he had been involved in a dispute with his brother, Ronan Lehany, and his brother’s wife since the death of his mother. He informed Dr. O’Ceallaigh that his mother had left all her land and property to him and he believed that his brother was aggrieved by this. He alleged that his brother had assaulted him on several occasions in the past and that he had reported these assaults to the Gardai but had not pressed charges for the sake of the family.

21. The applicant told Dr. O’Ceallaigh that on the day before assessment his brother Ronan had denied him access to his own lands. He alleged that his brother has threatened to slit his throat and that his brother’s wife had verbally abused him and had called him a homosexual. He claimed that she had told him that she had contacts in the United States who would have him killed. The Applicant further stated that Dr. Declan Loftus had called his house on the morning of the interview namely the 18th July, 1996 and asked the Applicant to come to Roscommon County Hospital for an assessment. The Applicant agreed to come to the hospital voluntarily but expressed concerns to him that he had been signed into hospital by his brother. He believed his brother’s motive in doing so was to attempt to discredit him and any testimony he would give in future court proceedings arising out of alleged assaults on him by his brother Ronan. Dr O’Ceallaigh took a detailed medical history from the Applicant during the interview. He also took details of the Applicant’s family history which showed that the Applicant’s father had had a history of depression. The applicant denied any other family history of psychiatric illness. He alleged that his brother Ronan has a history of violent behaviour and had assaulted other brothers in addition to the Applicant.

22. Dr. O’Ceallaigh also took a social history of the Applicant who indicated to him that he was a shy, easy going person who engaged in few hobbies and that he frequently felt depressed. There were no other independent reports of pre-morbid personality available to him at the time of that interview. Dr. O’Ceallaigh also asked the Applicant about his developmental history. As a result of his interview with the Applicant he assessed him and assessed his medical and mental state. The Applicant was tearful and upset and related this to the perceived implications of being detained in a Psychiatric Hospital. The Applicant was co-operative and pleasant during the interview and did not engage in any threatening behaviour. His speech was coherent and relevant, he spoke at a normal rate and, admitted to feeling depressed and objectively appeared to be so. He denied having a death wish or any thoughts of harming himself. Dr. O’Ceallaigh states that in his opinion the Applicant’s behaviour was appropriate. He says that he denied obsessional thoughts and he could find no evidence of these or of any compulsive behavioural phenomena. He did not elicit any delusional beliefs and was unable to judge whether or not they were present without a collateral history. The form of the Applicant’s thought did not appear disturbed. The Applicant denied experiencing any hallucinations. He was oriented to time, place and person. Attention, concentration and memory appeared to be normal to informal clinical testing. Dr. O’Ceallaigh also carried out a physical examination of the Applicant at the time.

23. Dr. O’Ceallaigh says that as the history related to him by the Applicant was in conflict with that provided by Dr. Loftus in his referral note. He decided it was important to contact Dr. Loftus to seek clarification and he did so. He spoke to Dr. Loftus by telephone and Dr. Loftus confirmed the details of his referral note and alleged that Mr. Lehany had made numerous complaints to the Gardai in the past, claiming ill treatment at the hands of his brother Ronan. Dr. Loftus also informed him that the Applicant had never admitted to psychotic symptoms in the past. Dr. O’Ceallaigh says that at this point it was important that he should make a differential diagnosis which he duly did. Having considered the possibility that the Applicant had been the victim of a misleading and inaccurate versions of events related to his General Practitioner by his family members. He also considered the possibility that the Applicant may have been suffering from a psychotic disorder which may have impaired his judgment and placed his physical safety and that of his family at risk. He assessed these as being two possibilities and then he decided to telephone Dr. Mary McGuire to seek advice on how to further proceed. He discussed the case with her and it was decided to admit the Applicant as a temporary patient overnight. The purpose of this was to make observation of his mental state overnight and to allow a collateral history to be obtained. After a telephone conversation with Dr. McGuire he then signed the Detention Section of the Temporary Patient Chargeable Form, pursuant to the Mental Treatment Act, 1945 and did not prescribe medication for the Applicant but made arrangements to examine him if observation of the Applicant’s unmedicated mental state overnight revealed any significant abnormalities. He remained on all night until 9 am on the 19th July and was not asked to see the Applicant again.

24. He further discussed the Applicant’s admission with Dr. O’ Shea to Dr McGuire on the morning of the 19th July, 1996. The Applicant was interviewed by Dr. McGuire on the morning of the 19th July, 1996 and was discharged at around lunchtime on the same date. Having reached the differential diagnosis which he did namely that the Applicant could be the victim of misleading information having been given about him to his GP or, in the alternative, he could have been suffering from a psychotic disorder, which may have impaired his judgment and placed his own safety and that of his family at risk, these were the possibilities which he believed existed at the time of the Applicant’s admission to Roscommon County Hospital. With those two possibilities in mind, he preceded further to consult Dr. McGuire and they reached the conclusion that admitting the Applicant overnight for observation was the best and most prudent course of action to take in all the circumstances. He said that this course of action was taken in good faith with the best interests of the Applicant in mind and was in all the circumstances the appropriate medical response to the facts with which he was presented.

25. Based upon this section it is submitted on behalf of the Applicant that he has discharged the onus imposed upon him to satisfy the court that there are substantial grounds for contending that the persons against whom the proceedings are to be brought, namely the first and second Respondents acted in bad faith, or in particular in the context of this case, without reasonable care. It is submitted by counsel on behalf of the Applicant that the term bad faith has to be seen in the legal sense rather than in moral sense of the word and that in the instant case the Applicant has established what amounts to a prima facie case. By reference to the decision of the Supreme Court in the case of Bailey -v- Gallagher [1996] 2 ILRM 433 it was submitted that the Applicant is not required to do more than satisfy the Court on the balance of probabilities that substantial grounds exist. Under the provisions of Section 184 sub-section 4 of the Mental Treatment Act, it is provided inter alia as follows

26. Counsel asked rhetorically how could such a fundamental difference of opinion arise within a matter of a few hours between the opinion formed by Dr. Loftus on the one hand and the two psychiatrists at the hospital on the other hand. It was submitted that Dr. Loftus erred in reaching the opinion to which he certified and that he placed undue reliance upon what was told to him by the brother of the Applicant. It is submitted that he made no independent investigation to ascertain the veracity of the background dispute and that the Certificate in the instant case therefore does not satisfy the requirements of Section 184 subsection 4. In this case the Applicant’s complaint is that he was subjected to a holding exercise on foot of which he was detained overnight. It is submitted that it is clear from the examination of the Applicant that was carried out that he was not suffering from any mental illness and should have been released. The Applicant was detained merely for investigation. It is submitted that the holding for the purposes of an investigation is not permissible under the provisions of the Act, that on the evidence he was normal when seen at the hospital. There were no clinical findings and this was all within a couple of hours of the initial certificate by Dr. Loftus. It is submitted that the finding by Dr. O’Ceallaigh leads inexorably to the inference that Dr. Loftus grossly misdiagnosed the Applicant and that this was so wrong as to show that reasonable care had not been taken by him. The views of the two doctors are at opposite ends of this spectrum.

27. On behalf of the first Respondent Mr. Seamus Noonan of Counsel submitted in the first instance that the Applicant’s brother is the villain of the peace and that Dr. Loftus has been criticised for failing to verify the brother’s account. He points to Dr. Loftus’s affidavit which until 1999 has not been controverted. It is submitted that this Court cannot resolve conflicts on the evidence in favour of the Applicant. By reference to the evidence it is submitted that the doctor knew the family in question and acted on the basis that he believed that he had credible and reliable informants in this case. He acted in the belief of a risk to the Applicant and others and in circumstances where he says he was fearful of his own safety. This is something that has not been disputed on the evidence before this Court. With regard to the standard of proof to be established it is submitted that it is wrong to say that there is only an obligation to establish a prima facie case exists. It is submitted that an Applicant must go much further than this. It is submitted that the Section is there to protect doctors and this arises in circumstances where they may be dammed if they do certify and dammed if they don’t on the other hand. It is submitted that the Court must have regard to the difficult position that doctors find themselves in.

28. Counsel referred this Court to a passage of the judgment of Griffin J in the case of O’Dowd -v- North Western Health Board [1982] ILRM 186 where at page 194 of the report Griffin J stated as follows:-

29. Counsel further referred this Court to the quoted passages from the case of Richardson -v- London County Council [1957] 1 WLR 751 referred to by Griffin J in the O’Dowd case quoting the judgment of Denning LJ and Parker LJ in that case. He concluded in that case that he would adopt what was said by Denning LJ and Parker LJ in respect of the corresponding section of the English Act which is in similar terms to the Irish Act.

30. Counsel further referred this Court to the authority of Murphy -v- Greene [1991] ILRM 404 which dealt with the same section of the Mental Treatment Act of 1945. In this particular case the doctor visited the Applicant who was in custody in a Garda Station at the time. He appeared to be in an advanced state of intoxication and was aggressive, disorientated and uncooperative. He refused upon request to allow himself to be physically examined or to admit himself voluntarily to a Psychiatric Hospital. The Defendant telephoned the doctor on call service to check the facts of the Plaintiff’s medical history. He then ascertained from St. Brendan’s Hospital that the Plaintiff would be received there for assessment and signed a Certificate pursuant to the 1945 Act certifying that in his opinion the Plaintiff was an addict and required at least six months preventative and curative treatment. The Plaintiff was then taken by Garda escort to the hospital but was discharged the following day. The Plaintiff obtained permission from the High Court to institute proceedings against the Defendant seeking damages for negligence, false imprisonment and libel. The Defendant appealed the matter to the Supreme Court where it was held by the Supreme Court in allowing the Appeal

31. At page 410 of the report Finlay CJ stated as follows:-

32. In the same case the Chief Justice indicated at the bottom of page 413 of the report that the provisions of Section 260 (2) clearly permit and almost direct the Court to have full regard to what is offered by a proposed defendant upon the hearing of such an application. Further at page 414 of the Report he indicated that a diagnosis which merely proves to be incorrect is not evidence in itself of either want of good faith or want of reasonable care. In the same case at page 415 of the report Griffin J indicated that he had previously imposed a standard which was too high and indicated that, properly construed, what is required by Section 260 is that an Applicant for leave to institute proceedings must establish, as a matter of probability, that there are substantial grounds for the contention that the proposed defendant acted in bad faith or without reasonable care. At the end of page 416 of the report O’ Flaherty J stated as follows:

33. In the same case McCarthy J at page 418 of the Report dealt with the concept of substantial grounds where he stated as follows

34. Dealing with the particular facts of that case at page 420 of the Report McCarthy J stated as follows:-

35. Further on the same page McCarthy J dealing with the facts of the particular case indicated that the fact that the Applicant was released following his admission to hospital in his view added nothing to the case.

36. Counsel has further referred this court to the decision of the Supreme Court in the case of Mary O’Reilly -v- Moroney (Unreported Supreme Court 16th November, 1993) where O’Flaherty J concurred with the approach of Egan J in the relation to the question of an examination. O’Flaherty J indicated that there is no doubt that Section 184 of the 1945 Act casts a very heavy responsibility on any doctor attempting to operate it, dealing, as it does, with the liberty of the individual. In that case the facts illustrated at page 7 of the judgment of Egan J indicate that the doctor seeing the Applicant saw that she was in an extremely disturbed mental state, very agitated, acutely anxious and very hysterical, when her husband knocked at the door of her house. The doctor decided that there was a probability or possibility at least of her being a danger to herself that night. He decided not to try to interview her as it might aggravate the situation. He stated that he had been told earlier in the evening that she had threatened to assault her husband with a hay fork. He made no effort, therefore, to interview her but went to the home of the mother of the husband where he signed the certificate. At page 9 of his judgment Egan J stated as follows:-

37. Mr. Noonan submitted that it is clear from the authorities that the suggestion that a prima facie case is all that is required to be shown by an intending plaintiff is an incorrect standard and furthermore that Bailey -v- Gallagher does not reverse the decision of the Supreme Court in the case of Murphy -v- Greene.

38. With regard to the complaints of Dr. Loftus first of all that no physical examination was carried out by him, counsel has pointed out by reference to the authorities that none as such is required and further by reference to paragraph 6 of the Applicants affidavit that he was not asked about medication etc. Counsel referred to the uncontradicted evidence of Dr. Loftus. With regard to the suggestion that the doctor placed too much emphasis on the report from the applicant’s brother, Dr. Loftus has indicated that he considered the source of the brother to be a reliable and credible one at the time. Dr. Loftus has also spoken to the Gardai at the time. It is further submitted that there was no need for him to make any further enquiries insofar as Dr. Loftus was the applicant’s own doctor. It is also clear he had the benefit of Dr. McGuire’s report.

39. Counsel had further referred this Court to the terms of the High Court proceedings intended in this action and has submitted that such claim in any event is statute barred. He referred to the fact that the motion in this case issued in June 1999 and that the statute ran out at the end of July 1999. In this regard Counsel referred me to the decision of Geoghegan J (unreported 2nd July, 1999) in the case of Blehein -v- Murphy & Ors where at page 5 of his judgment Geoghegan J stated as follows:-

40. In like vein in this case it is submitted by Counsel for the first Defendant that the claim which is proposed to be brought in these proceedings is statute barred and it is another basis upon which this Court should refuse the Applicant the relief which he seeks to institute the intended proceedings in question.

41. On behalf of the second Respondent, the Health Board, Mr. Keane of Counsel adopted the submissions made by Mr. Noonan on behalf of the first Respondent. Counsel referred this Court to the decision of McGuinness J delivered the 19th June, 1997 in the case of Melly -v- Moran and Anor where at page 24 of her judgment she applied the test already referred to in the course of this judgment that what she was required to do was to decide whether there are substantial grounds for contending that either the first or second named Defendant acted without reasonable care. In that case she indicated that it was clear from the preponderance of the judgments of the Supreme Courts that Section 260 is designed to prevent a vexatious or ill founded actions against medical practitioners in the circumstances of mental illness.

42. Counsel referred this Court further to the decision of O’Higgins J in the case of Kiernan -v- Harris and Ors. (unreported High Court 12th May, 1998) where at page 7 of his judgment he indicated that on the evidence before him that the Practitioner was not acting in good faith. He had indicated further that because he had failed to act with reasonable care in all the circumstances he would allow the proceedings to be instituted against the intended Defendant. With regard to the actions of the Health Board in that case O’Higgins J said that it would be quite unreasonable to demand that the Health Board should see to it that another party carried out its legal obligations.

43. It is submitted that by reference to the affidavit of Dr. O’Ceallaigh that he exercised great care in discharging his functions on behalf of the Health Board under the Act. In reply to the submissions of Counsel for the proposed Defendants, Mr. Clarke on behalf of the Applicant referred to the fact that the medical report referred to in the affidavit of Dr. Loftus is stated to have been dated the 15th May, 1986 while that produced bears the date of October 1986.

44. Counsel further referred this Court to the dissenting judgment of Blayney J in the case of O’Reilly -v- Moroney and the Mid Western Health Board delivered the 16th November, 1993. In that case Blayney J referred to the judgment of the Chief Justice in the O’Dowd case where O’Higgins CJ stated at page 190 of the Report:-

45. “ I am satisfied that the use of the phrase “substantial grounds” in this context, notwithstanding the Constitutional interpretation which I have indicated as being appropriate for the construction of this section, would mean something more than probable or prima facie grounds”.

46. Based upon the judgment of the then Chief Justice in the O’Dowd case, Mr. Clarke says that the appropriate standard of proof for the Applicant in the instant case is to establish a prima facie case.

47. Subsequent to the oral hearing in this case, written submissions were furnished at the invitation of the Court by the parties in regard to the issue of the statute of limitations. On behalf of the first named Respondent it was pointed out that in the Draft Plenary Summons exhibited in the grounding affidavit the Applicant proposes to claim damages for personal injuries allegedly sustained by him as a result of the negligence, breach of duty, breach of statutory duty and unlawful detention of the Applicant by the Respondents. Section 11(2)(b) of the Statute of Limitations 1957 provides that such an action shall not be brought after the expiration of 3 years from the date on which the cause of action accrued. In the present case the detention of which the Applicant complains, occurred on the 18th July, 1996 and accordingly it is submitted that the action is statute barred in circumstances where the Plenary Summons is not issued before the 18th July, 1999. It is submitted by reference to Section 260 itself that the institution of the proceedings can only occur after leave has been granted by the High Court. It is submitted that the application for leave cannot constitute the institution of proceedings for the purposes of the Statute of Limitations. Section 259 of the Act of 1945 provided as follows;-

48. It is submitted that given the very short limitation period involved and the potential difficulty of having the matter determined by the Court within that time frame the Oireachtas clearly considered it appropriate to enact the saving provision in Section 260(4) which provided that the proceedings would be deemed to have commenced on the date on which the Notice of Application for Leave was given to the Respondent. However, Section 259 and Section 260(4) have now been repealed. It is submitted accordingly that the ordinary limitation periods now apply which the Oireachtas might well have considered to be sufficient for the purposes of enabling an application to be brought and adjudicated upon before a claim would become statute barred. On behalf of the first Respondent it is submitted that there is no lacuna in the legislation which is perfectly clear in its meaning and effect. It is submitted that insofar as the Applicant seeks to argue that the cause of action in the present case does not accrue until such time as the Court grants leave to institute proceedings, the logical extension of this submission is that a claim by a potential Plaintiff who is being detained under the provisions of Section 145 of the Act can never be statute barred because the cause of action does not accrue until he is given permission to institute proceedings be it 10, 20 years or longer after the events giving rise to the claim. It is submitted that in that situation all a prospective plaintiff has to do to avoid the Statute of Limitations is to issue his writ within 3 years after having been given permission by the Court to do so. It is submitted that this proposition is untenable.

49. In support of his submission in this regard, Counsel has referred to portion of the judgment of Geoghegan J in Blehein -v- Murphy and Ors. (High Court, unreported 2nd July, 1999) already cited in this judgment.

50. On behalf of the Applicant it is submitted that there is a lacuna in the legislation with regard to what if any time limit applies to the issuing of proceedings proposed by the Applicant herein. It is submitted that the relevant period of limitation which under the statute of limitations would be three years does not begin to run until the High Court has by order authorised the institution of proceedings or within three years of such proceedings being authorised by the Supreme Court on appeal from the High Court. It is submitted that insofar as Section 260 of the Act of 1945 represents a legislative restriction on a person’s constitutional right of access to the Courts that any such statutory curtailment of the right of access to the Courts must be strictly construed.

51. In light of the Statute of Limitations of 1957 providing prima facie a three limitation period it is submitted on behalf of the Applicant that the essential element of having a “cause of action” is the right to immediately issue Court proceedings. It is submitted that a cause of action cannot exist where the person seeking to institute proceedings is prohibited by statute from so doing. The cause of action can only be complete when the Applicant is given permission to institute proceedings. It is submitted further that until permission is given the proposed cause of action is incomplete or inchoate.

52. The Applicant submits that it would be illogical and constitutionally unsound if, on the one hand, time was running against him pursuant to the Statute of Limitations 1957, while simultaneously he was prevented from issuing proceedings by reason of the provisions of Section 260 of the Mental Treatment Act, 1945. It is submitted that the illogicality in practical terms can be illustrated by the sometimes slow pace of modern litigation and it is perfectly possible that if a person were to issue a motion seeking liberty to bring proceedings of the nature herein, within a week of being released from detention in a Mental Hospital, it could well be in excess of three years before a final appeal might be heard by the Supreme Court. Procedural steps such as applications for Orders of Discovery, the possibility of Appeals to the Supreme Court against Orders of Discovery, the awaiting of a listing in a list to fix dates followed by an appeal to the Supreme Court on the substantive issue, could easily take in excess of three years. It would be unconstitutional for the Applicant’s right of access to the Courts to be defeated by inherent delays in Court procedures. It is pointed out in this regard that in the case of Murphy -v- Greene the judgment of the Supreme Court was delivered on the 18th December, 1990 in circumstances where the decision of the High Court appealed from was given on the 9th May, 1988. There was accordingly a gap of two years and seven months between the Order of the High Court and the decision of the Supreme Court. It is further pointed out that the application in that case related to an incident which had occurred in May of 1985. It is submitted accordingly that the Supreme Court judgment was given some five years and seven months after the events giving rise to the application. It is pointed out by Counsel before me that while dealing with the substantive issue in that case the Supreme Court made no reference to the possibility that the proposed claim was statute barred, nor does it appear to have been argued before the Supreme Court that the claim would be statute barred.

53. In summary it is submitted that a cause of action does not exist and time does not begin to run against a potential plaintiff during the period when he is prohibited by statute from issuing proceedings. The cause of action is complete, and time begins to run against the potential plaintiff, only when he is given permission by the High Court (or on Appeal by the Supreme Court) to issue proceedings.

54. In the written submissions of Mr. Noonan of Counsel on behalf of the first Respondent it is stated in response to the submissions made on behalf of the Applicant in this regard that it is accepted that the issue of the statute does not appear to have been averted to in the case as cited and the point was not taken against the Applicant in those proceedings. It is submitted that there is no reason in fact why an Applicant should not be required to have his application for leave not only issued but also dealt with within the three year period. It is submitted that if it was apprehended that the application was about to become statute barred, obviously an urgent application could be made to the Court and it is submitted that such an application would certainly not be without precedent.

55. In light of the evidence before me which in fact discloses a clear conflict between the Applicant and the Respondents and in light of the fact that none of the witnesses who have sworn affidavits on behalf of the Respondents, including the first Respondent himself, have been cross-examined on their evidence, I am not satisfied that there are substantial grounds for contending that either of the Respondents acted in bad faith or without reasonable care.

56. With regard to the actions of the Health Board I am satisfied that considerable care was exercised by the officers of the Health Board concerned in dealing with the Applicant and as soon as they had observed him overnight and were satisfied that no risk was present, they released him back into the community. It is clear also that they had a reference at that time from a medical practitioner which suggested the necessity of having the Applicant committed at that time and it was necessary for them to examine that situation before reaching any concluded view in the matter. I am satisfied that the detention for the assessment in the circumstances was appropriate.

57. With regard to the first Respondent no case of bad faith arises with regard to his actions, albeit a question mark has been raised in relation to the motivation of the Applicant’s brother in making the complaint to the first Respondent. With regard to the second aspect namely whether the first Respondent acted without reasonable care it is clear that further inquiries might have changed the conclusion that was reached at the time. Nevertheless, I am satisfied that the first Respondent acted in the belief that his informants were reliable persons and had no reason to believe at that time that their allegations against the Applicant were false or motivated by any malicious intent. Furthermore, the first Respondent had a medical history in relation to the Applicant showing that he had suffered depression some years prior to the events in question. Thirdly, this Court has the evidence of Dr. Loftus himself in relation to his observations at the time when he went to visit the Applicant. In this regard he says that he acted on the basis of his own clinical assessment and judgment of the Applicant’s condition, secondly on the basis of credible history of the Applicant’s behaviour in the recent past which he considered to come from reliable witnesses, and thirdly, on the basis of the Applicant’s medical and psychiatric history which was then known to him. He states that he believed that there was a genuine and immediate risk to the safety and welfare of the applicant and to the members of his family which required urgent psychiatric assessment and if necessary treatment. As previously stated the doctor was not cross examined on his affidavit. Clearly he placed some reliance on what he was told by Mr. Ronan Lehany. While he may have been misled in this regard he acted in good faith and acted in reliance upon what Mr. Ronan Lehany had said to him, believing that Mr. Ronan Lehany was truthful. While subsequent events must cast some doubt on the veracity of what was said by Mr. Lehany that is not the basis upon which this court must judge matters. In all the circumstances of this case I am not satisfied that the Applicant has discharged the relevant onus of proof such as to enable me to be satisfied that there are substantial grounds for contending that Dr. Lehany acted in bad faith or without reasonable care.

58. With regard to the statute of limitations it is to be noted that almost three years had passed before the papers grounding this application were filed in the High Court which was on the 3rd June, 1999. I am of the opinion that the relevant period of limitation is a three year period in the absence of any special provision pertaining to any claim under the Act of 1945 and in light of the repeal of Section 259 and Section 260 (4). While there indeed may be some force in the arguments advance on behalf of the Applicant that an application brought to the Courts may itself be delayed by the procedures involved in obtaining leave of the Court, I am satisfied that this matter is not catered for in the law as it stands and accordingly, if I was satisfied, which I am not, that the Applicant had discharged the onus of proof upon him under the provision of Section 260 (1) to show substantial grounds for contending that the Respondents acted in bad faith or without reasonable care, I would nevertheless be compelled to conclude that the proposed claim was statute barred and in those circumstances I would not be disposed to give leave to the Applicant to institute the within proceedings. In so concluding I must act on the basis of the presumption of constitutionality attaching to the section in circumstances where no challenge to same exists in these proceedings.